FIRST SECTION

DECISION

Application no. 19912/13 Adam Stefan ZAMOYSKI against Poland and 23 other applications (see list appended)

The European Court of Human Rights (First Section), sitting on 16 January 2018 as a Committee composed of:

Aleš Pejchal, President, Krzysztof Wojtyczek, Armen Harutyunyan, judges, and Renata Degener, Deputy Section Registrar ,

Having regard to the above applications lodged on the various dates indicated in the appended table ,

Having deliberated, decides as follows:

THE FACTS

1. A list of the applicants is set out in the appendix.

A. The circumstances of the case

2. The facts of the cases, as submitted by the applicants, may be summarised as follows.

1. Background

3. On 6 September 1944 the Polish Committee of National Liberation ( Polski Komitet Wyzwolenia Narodowego ) issued the Decree on agrarian reform ( dekret o reformie rolnej ). The decree provided that properties of an agricultural nature, owned or co-owned by natural or legal persons, with an area exceeding 100 hectares (ha) in total or 50 ha of agricultural land, would be allocated for agrarian reform (section 2(1)(e)). It further prescribed that such properties would be transferred to the State Treasury immediately and without any compensation.

4. On 12 December 1944 the Polish Committee of National Liberation issued the Decree on the nationalisation of certain forests ( dekret o przej ę ciu niekt ó rych las ó w na w ł asno ść Skarbu Pa ń stwa ). The decree provided that forests and forest land, owned or co-owned by natural and legal persons, with an area exceeding 25 ha, would be transferred to the State Treasury.

2. All applications

(a) Events before 10 October 1994

5. The applicants ’ legal predecessors owned estates and forest land. These properties were taken over by the State Treasury for the purposes of agrarian reform pursuant to the Decree on agrarian reform.

(b) Events after 10 October 1994

6. On various dates between 2009 and 2014 the applicants brought claims against the State Treasury. They sought various amounts in compensation for the nationalisation of the forest land which had been owned by their legal predecessors. They relied on section 7 of the Act of 6 July 2001 on the preservation of the national character of the country ’ s strategic natural resources ( ustawa o zachowaniu narodowego charakteru strategicznych zasob ó w naturalnych kraju – “the 2001 Act”).

7. In the alternative, if the court ruled that they could not seek indemnity under section 7 of the 2001 on account of a lack of separate provisions determining the rules of indemnification, the applicants sought compensation for legislative omission ( zaniechanie legislacyjne ) relying on Article 417 of the Civil Code and Article 77 of the Constitution. Some of the applicants sought compensation solely on account of the legislative omission.

8. By judgments given on various dates between 2011 and 2016 the domestic courts dismissed the applicants ’ claims under both heads. The relevant details regarding the final court decisions in respect of each applicant are set out in the appendix.

9. In their decisions, the domestic courts held that section 7 of the 2001 Act could not be interpreted as a basis of a direct claim for indemnity in respect of nationalised forests. The provision did not specify the amount of indemnity or the applicable conditions, and the courts could not substitute the legislature in this respect.

10. Secondly, the domestic courts held that there had been no legislative omission in the applicants ’ cases. They found that section 7 of the 2001 Act was a declaratory provision; however, a declaration that a certain regulation would be enacted on an unspecified future date was not sufficient to conclude that the obligation to legislate had been breached. The courts noted that the legislature had had no intention of cr eating an obligation to enact a statute on the indemnification of persons who had lost property as a result of the nationalisation decrees. The legisla ture simply provided for such a possibility in a statute to be enacted on an unspecified future date.

3. Application no. 59122/14

11. On 26 August 2011 the applicant brought a claim against the State Treasury, seeking compensation for the nationalisation of the forest that had been owned by his legal predecessor or, in the alternative, for legislative omission. On 28 May 2012 the Warsaw Regional Court dismissed his claim. On 27 February 2013 the Warsaw Court of Appeal dismissed the applicant ’ s appeal. On 16 April 2014 the Supreme Court refused to entertain the applicant ’ s cassation appeal.

B. Relevant domestic law and practice

12. A detailed description of the relevant domestic law and the Supreme Court ’ s case-law can be found in the leading decision Zamoyski-Brisson and Others v. Poland (no. 19875/13, 12 September 2017, §§ 24-25 and 27 ‑ 52).

COMPLAINTS

13. The applicants ’ complaints were similar to those examined by the Court in the case of Zamoyski-Brisson and Others . In particular, they alleged that the courts ’ dismissal of their claims for indemnity for the nationalised forest or, in the alternative, for compensation in respect of legislative omission, amounted to a violation of Article 1 of Protocol No. 1.

14. Two applicants (applications nos. 62714/13 and 63007/13) complained under Articles 6 and 13 of the Convention that they had been deprived of the opportunity to effectively vindicate the claims for indemnity conferred on them by the 2001 Act.

15. One applicant (application no. 70010/14) complained under Article 14 in conjunction with Article 1 of Protocol No. 1 that she had been discriminated against, unlike the Bug River claimants. They had received indemnity for property left beyond the present borders of Poland on the basis of the 2005 Act, while the applicant ’ s claim for indemnity in respect of nationalised forest had not been satisfied.

16. One applicant (application no. 59122/14) complained under Article 6 that the civil proceedings in his case had been excessively lengthy.

THE LAW

A. Joinder of the applications

17. Given their similar factual and legal background, the Court decides that the present applications should be joined pursuant to Rule 42 § 1 of the Rules of Court.

B. Complaint under Article 1 of Protocol No. 1

18. All applicants complained under Article 1 of Protocol No. 1 about the courts ’ dismissal of their claims for indemnity for the nationalised forest or, in the alternative, for compensation in respect of legislative omission. Some of the applicants further alleged a violation of Articles 6, 13 and 14 of the Convention in connection with the dismissal of their claims (see paragraphs 29-30 above). The Court considers, as it did in the case of Zamoyski-Brisson and Others , that the complaints should be examined under Article 1 of Protocol No. 1, which raises the principal legal issue in the case. This provision reads as follows:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

19. The applicants asserted that they had had the right to indemnity ( rekompensata ) for the nationalised forest or, in the alternative, the right to receive compensation for legislative omission. They considered themselves to have had a “legitimate expectation” in respect of that claim based on section 7 of the 2001 Act or, in the alternative, in respect of legislative omission based on Article 417 of the Civil Code in conjunction with Article 77 § 1 of the Constitution.

20. One applicant (application no. 1834/16) claimed that Polish law recognised claims in respect of the nationalisation of forests. She relied on the Decree on the nationalisation of certain forests, which stipulated in Article 5 that former owners of forests would receive a fixed monthly social security benefit. She submitted that that entitle ment had been in force, under a number of successive legal acts, until 31 December 1998. However, she also admitted that the provisions had not been applied in practice.

21. The Court notes that a cassation appeal lodged by three applicants (applications nos. 5993/14, 5999/14 and 6009/14) was rejected on formal grounds (see appendix below). However, in the circumstances of the case, the Court does not need to determine whether those applicants have complied with the rule of exhaustion of domestic remedies since their applications are, in any event, inadmissible for the reasons set out below.

22. The Court reiterates that the present cases raise similar issues to those already examined and declared incompatible ratione materiae with the provisions of the Convention (see Zamoyski-Brisson and Others v. Poland (dec.), no. 19875/13, 12 September 2017).

23. The Court has firstly analysed the applicants ’ assertion that section 7 of the 2001 Act constituted the basis of their claim for indemnity in respect of the nationalised forest. It noted that the domestic courts had dismissed that contention, having found that that section 7 of the 2001 Act did not create for former own ers or their legal successors a claim for indemnity. They further held that section 7 of the 2001 Act lacked a number of essential elements allowing such a claim to be constructed, including conditions to be fulfilled by persons eligible to be indemnified or the manner of determining the amount ( Zamoyski-Brisson and Others , cited above, § 72).

24. Domestic courts consistently interpreted section 7 of the 2001 Act as excluding the possibility of it constituting a n independent legal basis for a claim for indemnity. That approach was formulated in the Supreme Court ’ s judgment of 29 June 2012 and in its three judgments of 6 September 2012. It was subsequently confirmed in the Supreme Court ’ s resolution of 20 December 2012 and the subsequent judgment of that court of 26 June 2015 (ibid., § 74).

25. In Zamoyski-Brisson and Others v. Poland , the Court has also examined the applicants ’ argument that their case was comparable to Broniowski v. Poland , in that the State had also conferred on them a certain entitlement, namely the right to indemnity for the nationalised forest. However, it has found that the applicants ’ case was clearly distinguishable from the Broniowski case. In the latter case, the applicant ’ s entitlement, described as the “right to credit”, was acknowledged to be, inter alia , a “special property right of a public-law nature” and a “particular proprietary right” of a “pecuniary value” by the Constitutional Court and the Supreme Court respectively. Those findings of the highest domestic judicial authorities led the Court to conclude in Broniowski that the applicant ’ s entitlement constituted a “possession” within the meaning of Article 1 of Protocol No. 1 (see Broniowski v. Poland [GC], no. 31443/96, § 131, ECHR 2004 ‑ V). By contrast, in the applicants ’ case, the domestic courts consistently rejected the applicants ’ argument that section 7 of the 2001 Act conferred on them a right to indemnity. Furthermore, the domestic courts established that the Decree on agrarian reform and the Decree on the nationalisation of certain forests did not establish rights to compensation in respect of property transferred to the State under them (ibid., § 75).

26. The Court has further found that the fact that a domestic statute confers a certain entitlement on one category of claimants (Bug River claimants) did not require the State to provide compensation to a distinct category of potential claimants seeking restitution of their property. It reiterated that Article 1 of Protocol No. 1 did not restrict the freedom of Contracting States to choose the conditions under which they agree to restore property rights to dispossessed persons or to determine the arrangements whereby they agree to indemnify or compensate the persons concerned (see Von Maltzan and Others v. Germany (dec.) [GC], nos. 71916/01 and 2 others, § 77 in fine , ECHR 2005 ‑ V).

27. The Court has further examined the applicants ’ submissions regarding their claim for compensation in respect of legislative omission consisting of a failure to enact the separate provisions referred to in section 7 of the 2001 Act. It noted that a claim under this head had also been dismissed by the domestic courts. The domestic courts found that section 7 was a declaratory provision, which contained only the legislature ’ s announcement concerning a future statute on the question of indemnities and did not comprise an explicit obligation to enact another statute. The Supreme Court subsequently confirmed that section 7 simply contained a proclamation of the legislature ’ s intention as to the manner of satisfying the future claims asserted by former owners of forests (see the Supreme Court ’ s Resolution of 20 December 2012 and its judgment of 26 June 2015; and paragraphs 23-27 above).

28. In Zamoyski-Brisson and Others v. Poland , the Court has found that the domestic courts ’ decisions revealed a consistent thread that claims for indemnity in respect of the nationalised forests under section 7 of the 2001 Act, or for leg islative omission under Article 417 of the Civil Code in conjunction with Article 77 § 1 of the Constitution were unfounded in terms of domestic law (ibid., § 83).

29. The Court has examined the applicants ’ submissions regarding Article 1 of Protocol No. 1 in the present cases. However, it does not discern any gr ounds on which it could reach a different conclusion as to the lack of basis for the applicants ’ claims in domestic law.

30. Having regard to its findings in Zamoyski-Brisson and Others v. Poland , the Court therefore concludes that the applicants have not shown that they had claims that were sufficiently established to be enforceable, and they therefore cannot argue that they had “possessions” within the meaning of Article 1 of Protocol No. 1.

31. It follows that the applicants ’ complaints under Article 1 of Protocol No. 1 are incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.

C . Remaining complaint (application no. 59122/14)

32. The applicant complained under Article 6 § 1 of the Convention of the unreasonable length of the proceedings. The Court notes, however, that the applicant failed to avail himself of the domestic remedies available under the Law of 17 June 2004 on a complaint about a breach of the right to have a case examined in an investigati on conducted or supervised by a prosecutor and in judicial proceedings without undue delay.

33. It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

For these reasons, the Court, unanimously,

Decides to join the applications;

Declares the applications inadmissible.

Done in English and notified in writing on 8 February 2018 .

             Renata Degener AleÅ¡ Pejchal              Deputy Registrar President

APPENDIX

No.

Application no.

Lodged on

Applicant

Date of birth

Place of residence

Represented by

Course of domestic proceedings

Final decision

19912/13

04/03/2013

Adam Stefan ZAMOYSKI

11/01/1949

London

B. Kosmus

15 December 2010 Warsaw Regional Court;

22 September 2011 Warsaw Court of Appeal

the Supreme Court ’ s judgment of 6 September 2012 (no. I CSK 59/12)

19939/13

04/03/2013

Jan Andrzej Franciszek ŻÓŁTOWSKI

29/07/1939

London; the applicant died on 19/07/2015; his wife and two children wish to pursue the application

B. Kosmus,

K. Gotkowicz

3 February 2011 Warsaw Regional Court;

22 September 2011 Warsaw Court of Appeal

the Supreme Court ’ s judgment of 6 September 2012 (no. I CSK 77/12)

60730/13

11/09/2013

El ż bieta POTOCKI

06/01/1939

Montreal

B. Kosmus,

K. Gotkowicz

24 February 2012 Warsaw Regional Court;

14 March 2013

Warsaw Court of Appeal

the Supreme Court ’ s decision of 16 April 2014 (refusal to entertain cassation appeal)

62714/13

27/09/2013

Anna POTOCKA

08/08/1925

Montresor, France

J. Forystek

19 October 2010 Warsaw Regional Court;

9 March 2012

Warsaw Court of Appeal

the Supreme Court ’ s decision of 27 March 2013 (refusal to entertain cassation appeal)

62940/13

26/09/2013

Antoni Maria J ó zef de BOURBON

09/01/1929

Pully, Switzerland

B. Kosmus

17 August 2011 Warsaw Regional Court;

26 April 2012

Warsaw Court of Appeal

the Supreme Court ’ s decision of 27 March 2013 (refusal to entertain cassation appeal)

63007/13

27/09/2013

Zenon ZAMBRZYCKI

17/02/1949

Szubin

J. Forystek

1 June 2011 Warsaw Regional Court;

18 April 2012

Warsaw Court of Appeal

the Supreme Court ’ s decision of 27 March 2013 (refusal to entertain cassation appeal)

63036/13

19/09/2013

Róża Maria ŁUBIEŃSKA

30/07/1947

London

B. Kosmus

16 November 2011 Warsaw Regional Court;

19 July 2012

Warsaw Court of Appeal

the Supreme Court ’ s decision of 27 March 2013 (refusal to entertain cassation appeal)

63776/13

26/09/2013

Andrzej Aleksander BEROWSKI

02/03/1951

Gorzów Wielkopolski

B. Kosmus, K. Gotkowicz

20 April 2011 Warsaw Regional Court;

9 February 2012 Warsaw Court of Appeal

the Supreme Court ’ s decision of 27 March 2013 (refusal to entertain cassation appeal)

69737/13

15/10/2013

Krzysztof Micha Å‚

KRASIŃSKI

14/06/1948

Warwick, the USA

I. Magiera

18 August 2011 Warsaw Regional Court;

11 May 2012

Warsaw Court of Appeal

the Supreme Court ’ s decision of 27 March 2013 (refusal to entertain cassation appeal)

5993/14

08/01/2014

Halina KOTULSKA-SKOLIMOWSKA

14/05/1931

Wieliczka

Z. Cicho Å„

27 June 2012 Warsaw Regional Court;

17 July 2013 Warsaw Court of Appeal

the Warsaw Court of Appeal ’ s decision of 6 May 2014 (rejection of cassation appeal)

5999/14

10/01/2014

Maria KOTULSKA-BIENIASZ

24/11/1942

Cracow

Z. Cichoń

as above

as above

6009/14

10/01/2014

Ja rosław PACHOŃSKI

20/0 5/1947

Rogoźnik

Z. Cichoń

as above

as above

44284/14

05/06/2014

Marianna ZAWILSKA

15/08/1914

Gdynia

M. Zawilska

19 July 2012 Gda Å„ sk Regional Court;

24 January 2013 Gdańsk Court of Appeal

the Supreme Court ’ s decision of 5 December 2013 (refusal to entertain cassation appeal)

49944/14

02/07/2014

Jerzy Hubert KRASICKI

08/11/1931

Melbourne, Australia

J. Siekański

26 January 2012 Warsaw Regional Court;

16 January 2013 Warsaw Court of Appeal

the Supreme Court ’ s decision of 10 December 2013 (refusal to entertain cassation appeal)

50671/14

20/06/2014

Jan Franciszek POTOCKI

29/05/1953

Cracow

B. Kosmus,

K. Gotkowicz

10 January 2012 Warsaw Regional Court;

26 October 2012

Warsaw Court of Appeal

the Supreme Court ’ s decision of 20 December 2013 (refusal to entertain cassation appeal)

59122/14

16/08/2014

Antoni GNIEWOSZ

12/06/1922

Szczecin

28 May 2012 Warsaw Regional Court;

27 February 2013 Warsaw Court of Appeal

the Supreme Court ’ s decision of 16 April 2014 (refusal to entertain cassation appeal)

70010/14

21/10/2014

Joanna DOROSIEWICZ

04/07/1928

Warsaw

A. Herman

10 July 2012 Warsaw Regional Court;

14 March 2013 Warsaw Court of Appeal

the Supreme Court ’ s decision of 30 April 2014 (refusal to entertain cassation appeal)

73832/14

19/11/2014

Ewa MODZELEWSKA

13/01/1949

Gdynia; the applicant died on 31/07/2015; her sister wishes to pursue the application

I. Grzywacz-Chlipała

19 March 2012 Warsaw Regional Court;

23 January 2013 Warsaw Court of Appeal

the Supreme Court ’ s decision of 29 April 2014 (refusal to entertain cassation appeal)

46576/15

11/09/2015

Grzegorz IZBICKI

05/03/1966

Radom

Hanna Maria

SŁAWIŃSKA

06/12/1955

Józefów

Aleksandra CHWEDOROWICZ

30/11/1952

Warsaw

Jacek WIÅšNIEWSKI

20/08/1954

Warsaw

R. Fijałkowski

21 March 2013 Warsaw Regional Court;

8 November 2013 Warsaw Court of Appeal

the Supreme Court ’ s decision of 18 March 2015 (refusal to entertain cassation appeal)

57403/15

06/11/2015

Andrzej Maria BNIŃSKI

23/03/1949

Warsaw

B. Kosmus,

K. Gotkowicz

10 January 2014 Warsaw Regional Court;

7 May 2015 Warsaw Court of Appeal

the Supreme Court ’ s decision of 20 July 2016 (refusal to entertain cassation appeal)

57420/15

06/11/2015

Konstanty Rafał BNIŃSKI

11/03/1945

Warsaw

B. Kosmus,

K. Gotkowicz

as above

as above

57436/15

06/11/2015

Irena Izabella POTWOROWSKA

29/08/1947

Copperfield, the United Kingdom

B. Kosmus,

K. Gotkowicz

as above

as above

59372/15

20/11/2015

Magdalena Maria KWILECKA

15/12/1953

Rajszew

B. Kosmus, K. Gotkowicz

17 July 2014 Warsaw Regional Court;

22 May 2015 Warsaw Court of Appeal

the Supreme Court ’ s decision of 11 August 2016 (refusal to entertain cassation appeal)

1834/16

23/12/2015

Z. R.

17/03/1950

Warsaw

M. Obrębski

25 October 2012 Warsaw Regional Court;

2 October 2013

Warsaw Court of Appeal

the Supreme Court ’ s judgment of 26 June 2015 (no. I CSK 316/14)